{ "id": 3065540, "name": "William S. Crawford, Executor of the estate of Alexander W. Crawford, deceased, Appellant, v. Chicago & Alton Railroad Company, Appellee", "name_abbreviation": "Crawford v. Chicago & Alton Railroad", "decision_date": "1922-07-11", "docket_number": "", "first_page": "138", "last_page": "144", "citations": [ { "type": "official", "cite": "226 Ill. App. 138" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "19 Ill. App. 135", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 4901225 ], "opinion_index": 0, "case_paths": [ "/ill-app/19/0135-01" ] }, { "cite": "120 Ill. App. 58", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5306378 ], "opinion_index": 0, "case_paths": [ "/ill-app/120/0058-01" ] }, { "cite": "198 Ill. 288", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 845415 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill/198/0288-01" ] }, { "cite": "222 Ill. 348", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3338767 ], "opinion_index": 0, "case_paths": [ "/ill/222/0348-01" ] }, { "cite": "197 Ill. App. 267", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5376815 ], "opinion_index": 0, "case_paths": [ "/ill-app/197/0267-01" ] }, { "cite": "131 Ill. 557", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5417012 ], "opinion_index": 0, "case_paths": [ "/ill/131/0557-01" ] }, { "cite": "250 Ill. 460", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3429769 ], "opinion_index": 0, "case_paths": [ "/ill/250/0460-01" ] }, { "cite": "215 Ill. 436", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5618407 ], "opinion_index": 0, "case_paths": [ "/ill/215/0436-01" ] }, { "cite": "242 Ill. 544", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5654296 ], "opinion_index": 0, "case_paths": [ "/ill/242/0544-01" ] }, { "cite": "133 Ill. 55", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5428925 ], "opinion_index": 0, "case_paths": [ "/ill/133/0055-01" ] }, { "cite": "237 Ill. 104", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3386434 ], "opinion_index": 0, "case_paths": [ "/ill/237/0104-01" ] }, { "cite": "263 Ill. 266", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4761025 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill/263/0266-01" ] } ], "analysis": { "cardinality": 604, "char_count": 13255, "ocr_confidence": 0.501, "pagerank": { "raw": 7.0703969563105e-08, "percentile": 0.42587695267175807 }, "sha256": "3c94d50b9eb9678ab9debffc2283303adb7f7e1ca6a61f1face8719dca9e1c66", "simhash": "1:28449cf090b293a4", "word_count": 2354 }, "last_updated": "2023-07-14T19:13:22.929454+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "William S. Crawford, Executor of the estate of Alexander W. Crawford, deceased, Appellant, v. Chicago & Alton Railroad Company, Appellee." ], "opinions": [ { "text": "Mr. Justice Barry\ndelivered the opinion of the court.\nAppellant sued to recover for the death of his testator which was caused by a passenger train of appellee at a grade crossing in the Village of Wood River. In separate counts of his declaration he charged negligence generally; statutory negligence in' failing to ring a bell or sound a whistle; and the violation of a speed ordinance. At the close of appellant\u2019s evidence, and again at the close of all the evidence, appellee requested and the court refused to instruct the jury to return a verdict in its favor.\nThe street in question runs east and west and is crossed almost at right angles by two or three tracks of the Terminal Company and by those of the Big Four Railroad Company, the Chicago & Alton Railroad Company and the Traction System. All of those tracks run parallel and practically north and south. A flagman is stationed at the east side and another at the west side of the crossing. In approaching from the east a traveler encounters the tracks in the order above stated. At the time in question the deceased was driving an automobile from the east and when he approached the crossing he came to a full stop with his car to the north of the center of the street and waited' several minutes because the crossing was blocked by a freight train switching back and forth oii one of the Terminal tracks. While he waited a number of automobiles came up and stopped. One, at least, was standing west of the train waiting to cross to the east. The train was finally cut and the crossing cleared to allow the automobiles to cross. When that was done all of the cars started and there was some confusion because of cars going in both directions and one car cut in ahead of the deceased. At that time appellee\u2019s train was coming from the south but on the Big Four track. Some of the witnesses say that the flagman was then near his shanty about two feet from the sidewalk on the south side of the street talking to a man and gave no signal to the drivers of the cars; others say they saw no flagman, while some of those for appellee and the flagman, himself, say that he was out in the street and held up his \u201cstop\u201dsign.\nThe evidence tends to show that at the time of the accident the view of the deceased of the approaching train was more or less obstructed by cars, fences, etc. That on behalf of appellant tends to show that the train was running at a speed of forty to fifty miles per hour, while that for appellee is to the effect that the speed was from eighteen to thirty-five miles per hour. The ordinance limited the speed to ten miles per hour. There is a conflict in the evidence as to whether the bell was rung or the whistle sounded prior to the instant it became apparent that a collision was inevitable.\nUnder this state of the evidence the question of contributory negligence was for the jury and the trial court very properly refused the peremptory instructions requested by appellee. Gibbons v. Aurora, E. & C. R. Co., 263 Ill. 266.\nA person approaching a railroad crossing in a city or village may presume that the company will not run its train at a rate of speed prohibited by ordinance, and contributory negligence cannot be imputed to such person for a failure to anticipate that the company would violate the ordinance. Dukeman v. Cleveland, C., C. & St. L. R. Co., 237 Ill. 104. Contributory negligence is a question for the jury even though the view of an approaching train is not obstructed where the attention of the traveler is directed to another train on a parallel track and to his team. Gibbons v. Aurora, E. & C. R. Co., 263 Ill. 266.\nAppellee offered some evidence to the effect that deceased was driving his car at a higher rate of speed than ten miles per hour as he approached and drove upon the Big Four track upon which he was struck by appellee\u2019s train. Appellant had offered no evidence in regard to that matter in chief and the court refused to allow him to make proof thereof in rebuttal.\nThe court gave the following instruction to the jury at the request of appellee:\n\u201cThe court instructs the jury that the statutes of the State of Illinois provide as follows: \u2018Upon approaching any highway crossing and railroad at grade, the person controlling the movement of any self-propelled vehicle shall reduce the speed of such vehicle to a rate of speed not to exceed ten (10) miles per hour. \u2019\n\u201cThe court instructs you that this is a valid and subsisting law of the State of Illinois, and no damages can be recovered by one who is injured or for one who is killed who violates this law, and if you believe from the evidence in this case that deceased, Crawford, just before and at the time of the collision, was driving his automobile at a rate of speed in excess of ten miles per hour, then the court instructs you to find the defendant railroad company not guilty.\u201d\nThe effect of that instruction was to declare, as a matter of law, that deceased was guilty of contributory negligence if he violated that statute. It must be remembered that deceased had come to a full stop when he reached the tracks of the Terminal Company at this crossing. When he passed over the first tracks there was a flagman, but there is a conflict in the evidence as to whether he gave any signal. One witness testified that the flagman was about two feet from the sidewalk talking to a man; that after the collision witness ran by them to the place of the accident and the man to whom the flagman was talking asked the witness what was the matter. This, in connection with other testimony, would tend to show that the flagman was not attending to his duties.\nBy stationing a flagman at a crossing and making it his duty to display proper signals of warning whenever an engine or train is approaching, the public has a. right to rely upon the absence of signals of warning and presume that the tracks are clear. Chicago, M. & St. P. Ry. Co. v. Wilson, 133 Ill. 55.\nA jury is properly instructed to find for the defendant if the plaintiff was guilty of any negligence which contributed in any degree to bring about his injury. Krieger v. Aurora, E. & C. R. Co., 242 Ill. 544. But the question of contributory negligence is one of fact to be submitted to the jury, unless the undisputed evidence is so conclusive that all reasonable minds would reach the same conclusion on the question. Chicago City Ry. Co. v. Nelson, 215 Ill. 436.\nA plaintiff was riding in a buggy in the night without a light in violation of a city ordinance and was struck by a car of the street railway company. He brought suit and the defendant offered the ordinance in evidence, but it was excluded by the court. The Supreme Court said: \u201cIn view of these facts we are of the opinion that it was proper to make proof that the vehicle in which the parties, at the time of the accident, were riding, was being driven upon the street in violation of law, which proof would have raised the presumption that all the occupants of the buggy were, as a matter of law, guilty of negligence, which negligence, if it was the proximate cause of the injury, would defeat a recovery.\u201d Flynn v. Chicago City Ry. Co., 250 Ill. 460-465.\nAlthough the running of a train at a rate of speed of more than twelve miles an hour, in violation of an ordinance, may be negligence per se, yet it is a question of fact -whether such negligence so far contributed to the death of the engineer having the train in charge as to preclude a recovery. Lake Shore & M. S. Ry. Co. v. Parker, 131 Ill. 557. This court held that where a plaintiff was driving at a speed in violation of a city ordinance and his horse was injured the question of the contributory negligence of the driver was to be' determined by the jury under all the evidence. Osborn v. City of Mt. Vernon, 197 Ill. App. 267.\n\u201cEven if deceased had been engaged in the violation of an ordinance, to bar a recovery on that ground it must appear that such violation of the ordinance was the proximate and efficient cause of the injury.\u201d Star Brewery Co. v. Hauck, 222 Ill. 348-352. \u201cIf plaintiff was guilty of any negligence not contributing to the injury, such negligence could not be contributory negligence.\u201d St. Louis Nat. Stock Yards v. Godfrey, 198 Ill. 288-296.\nContributory negligence is a want of ordinary care upon the part of a person injured by the actionable negligence of another, combining and concurring with that negligence and contributing to the injury as a proximate cause \"thereof, without which the injury would not have occurred. 7 Amer. & Eng. Encyc. of Law (2nd Ed.) 371; 29 Cyc. 505; St. Louis Nat. Stock Yards v. Godfrey, 198 Ill. 288-296.\nThere must be a proximate connection between the failure to exercise ordinary care and the injury, so direct and immediate that but for such want of ordinary care the injury would not have occurred. 7 Amer. & Eng. Encyc. of Law (2nd Ed.) 273.\nBefore an illegal act or omission can be held contributory negligence, it must appear that such act or omission was a proximate cause of the injury. 7 Amer. & Eng. Encyc. of Law (2nd Ed.) 401.\nWe are of the opinion that under the foregoing decisions of our Supreme Court and the evidence in this record, the jury should have been permitted to say whether the violation of the statute in question contributed to the death of the deceased.\nWhen the case was called for trial appellant moved for a continuance because of the absence of a material witness and supported his motion by an affidavit which set out what he expected to prove by the witness. Appellee admitted that the witness would so testify and the motion was overruled. Oh the trial appellant read that part of the affidavit setting out the testimony of the witness. The court, over objection, permitted appellee to introduce in evidence a statement made by the absent witness that was very much in conflict with the facts which were stated in the affidavit for continuance.\nWhere a party to avoid a continuance, has admitted that an absent witness would, if present, testify to the particular matters set up in the affidavit for continuance, he has thereby waived his right to impeach such witness by a method which required him to lay a foundation therefor. Helbig v. Citizens Ins. Co., 120 Ill. App. 58; Chicago & A. Ry. Co. v. Lammert, 19 Ill. App. 135.\nBecause of the errors aforesaid the judgment is reversed and the cause remanded.\nBeversed and remanded.", "type": "majority", "author": "Mr. Justice Barry" } ], "attorneys": [ "Vaughh & Nbvbsts and Jesse Peebles, for appellant.", "C. E. Pope, for appellee; Silas H. Straw\u00bb, of counsel." ], "corrections": "", "head_matter": "William S. Crawford, Executor of the estate of Alexander W. Crawford, deceased, Appellant, v. Chicago & Alton Railroad Company, Appellee.\n1. Railroads \u2014 contributory negligence of decedent at grade crossing accident is jury question. In an action against a railroad for v damages for the death of plaintiff\u2019s testator in a grade crossing accident, peremptory instructions for the railroad were properly refused, the question of contributory negligence being for the jury, where the evidence showed that decedent brought his automobile to a dead stop at the crossing, it being blocked on the first of several tracks by a freight train, that when the crossing was cleared by the cutting of the freight train he proceeded and was struck by defendant\u2019s train on a further track, that the crossing was filled with motor traffic moving in both directions which impeded decedent\u2019s progress, that his view was obstructed by the freight train, and Is in conflict as to whether the flagman gave any signal, as to whether any bell or whistle was sounded and as to , the speed of the train, although it was shown to have been in excess of the lawful limit.\n2. Railroads \u2014 violation of speed law at grade crossing as contributory negligence per se. It is reversible error to instruct the jury, in effect, that violation of the statute limiting the speed of automobiles in crossing a railroad grade crossing to ten miles an hour is contribfitory negligence as a matter of law, where the evidence shows that decedent came to a dead stop before attempting to cross the track, which was blocked by a freight train, that the train which struck decedent was approaching on a further track at an unlawful rate of speed, that decedent\u2019s view was obstructed by the freight train, even after it had been cut to clear the crossing, and is in conflict as to whether the bell was rung or whistle sounded and as to whether the flagman gave any signal, it being for the jury to determine on all the evidence whether decedent\u2019s violation of the speed statute proximately contributed to the decedent\u2019s death.\n3. Continuances \u2014 admission that absent witness would testify as stated in affidavit for continuance as waiver of right of impeachment. A defendant, who to 'avoid a continuance because of the absence of a material witness for plaintiff, admits that such witness would testify as stated in the affidavit for continuance, thereby waives his right to impeach such witness by introducing in evidence a statement made by the witness in conflict with the facts stated in the affidavit.\nAppeal from the City Court of Alton; the Hon. Levi D. Yageb, Judge, presiding. Heard in this court at the March term, 1922. \u00bb\nReversed and remanded.\nOpinion filed July 11, 1922.\nVaughh & Nbvbsts and Jesse Peebles, for appellant.\nC. E. Pope, for appellee; Silas H. Straw\u00bb, of counsel." }, "file_name": "0138-01", "first_page_order": 192, "last_page_order": 198 }